¶1 The defendant, on the default of the contractor, elected to proceed to complete the house under the clause in the contract which provides that if the contractor should at any time during the progress of the work refuse or neglect to supply a sufficiency of materials or workmen, the owner may, after three days’ notice being given to the contractor, provide them, and deduct the expense from the amount of the contract. The owner gave the notice, and expended in completing the house $2,102.20, which, together *300 with the amount he had paid the contractor, was $778.90 less than the sum the contractor was to receive under the contract; and this sum was allowed to the plaintiffs upon their lien.
¶2 The defendant, by electing to go on under this clause of the contract, waived the right to insist upon a forfeiture for the failure of the contractor to perform the contract. The owner was not precluded thereafter from claiming damages against the contractor for defective performance, or for failure on his part to complete the building at the time specified; and these damages he could recoup, against any sum due the contractor, for work done under the contract. But he could not avail himself of the right, given him by the contract, to complete the work, thereby substituting himself in place of the contractor, and at the same time claim that the contract was at an end, and refuse to account to the contractor for work done finder it, on the ground that the contract was forfeited. The election to do the work at the contractor’s expense, under the clause referred to, assumed that the contract was then in force. The case of Gillen v. Hubbard (2 Hilton, 304), a case arising under a similar contract, contains a very satisfactory exposition of the meaning of this clause.
¶3 This disposes of the main question in this case. The answer did not seek to recoup damages for the contractor’s default in performing his contract. The referee found that there was a failure in several “respects, by the contractor, to perform it, but there is no finding as to the amount of damages, and no request to find upon the subject.
¶4 The exception to the finding that the defendant elected to complete the contract himself, is not well taken, because that fact was both alleged in the answer and proved on the trial; and the other findings of fact excepted to were supported by evidence. The conclusion of law that the defendant had waived the forfeiture was amply justified by the proof, and the exception thereto cannot be sustained.
¶5 The judgment should be affirmed.
¶6 All concur.
¶7 Judgment affirmed.